Randi Milgram is an attorney specializing in intellectual property law. She's also a wonderful friend whose countless Instagrams with awesome celebrities will inspire some serious envy (seriously- she got to stand next to Patrick Stewart). She addressed the VVC crowd on the basics of copyright law and how it applies to blogs and other online content. Because she's a fancy lawyer who's used to speaking to people, she had a crystal-clear power point presentation with clearly outlined points. Way to go, Randi! Here's what I learned:

What you own, and what you don't.

COPYRIGHT

Copyright protects original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

Ideas or opinions cannot be copyrighted- it's the expression of those ideas that are. 'Fixed' means published in any form. Blog entry drafts are no more copyrighted than your journal under your bed- it must be published in order for any form of copyright to apply.

What are your rights with a copyrighted work? It means you have the right to:

reproduce content

publicly perform content

sell/rent/lease/lend copies of content

create derivative works from the original content

exclude others from using content without permission

control where content is seen

You can choose to exercise all or none of these rights.

However, bloggers are put in a bit of an awkward position, thanks to the contradictions between the glacial pace of American law and the hyperspeed with which new technology and social media platforms develop and evolve. Any content creator cannot sue for infringement without first registering that content with the United States Copyright Office. Registration is $35 per published piece, which means that for bloggers, that would mean per post. Because a blog is a living document and will be updated, one cannot register the blog copyright for future, unwritten entries. Although you can still take legal action against infringement if you register your content after the infringement takes place, the timing of when content is registered affects how much money you can seek in court. If your content was already registered with the Copyright Office at the time of the infringement, you may sue for damages (earnings lost) as well as attorney's fees. If the content is copyrighted post-infringement, however, one may only seek damages, which, in the world of blogging, may be as inconsequential as a $.07/month banner ad.

So, with this obstacle facing bloggers, how do we protect our intellectual property when infringement happens?

Nobody knows if you've already registered your work, so start with a cease & desist letter. It sounds fancy, but really all you need to say, in a stern and serious and slightly scary tone, is that your work has been used without your permission and that it must be immediately taken down/withdrawn at the threat of legal action. Failing that,

The Digital Millennium Copyright Act (or DMCA, which, contrary to its name, was passed in 1996 and is still to date the most recent copyright law addressing digital media) lays out further steps you can take. First, determine the web host of the site/person using your content through www.whois.com. Then, go to www.copyright.gov and find the DMCA agent who oversees that host. Request the DMCA agent send a take-down notice.

It's important to distinguish, especially at Vida Vegan Con, that recipes are considered ideas and thus cannot be copyrighted. The written recipe can be owned and copyrighted, especially if there is original or specific prose (the writer's "voice"), but the idea of certain ingredients in certain amounts combined in a certain way cannot. Cookbooks are different, because the compilations of recipes can be copyrighted.

TRADEMARKS

A trademark is any word, phrase, symbol or design, or a combination thereof, that identifies the source of the goods of one party and distinguishes them from the goods of others.

What serves as a trademark? From most to least effective:

Fanciful- something made up, completely unique

Arbitrary- unrelated to the product or property but still distinct (i.e., Apple)

Suggestive- something not quite spot-on but still evocative of the property (i.e., Coppertone, Greyhound)

Generic- a description of the category the property falls into (i.e., phone, computer)

The closer to the top of the list your property falls, the stronger your ownership argument will be.

So why register? When you register a trademark, you get exclusive national rights. Without registration, you still have rights to your trademark, but only in the area in which you do business. For example, a burger restaurant named Burger King in Mattoon, Illinois, failed to register a trademark. The national chain Burger King was able to trademark the name for themselves, however- the national chain is still barred from conducting business with a 100 mile radius of Mattoon because the local Burger King predates the registration of the trademark.

When deciding on a Trademark, use only what you must for identification. Do not imply a relationship with any other entity where there is none. Finally, do a little research to confirm there are no confusingly similar names.

Use this one when you have Registered something with the US Copyright Office

This one is for your trademark if you haven't registered it

What other people own

The Fair Use Doctrine of the United State Copyright Act provides that you may incorporate the works of others for purposes of commentary, parody, satire, news, education or teaching, and scholarly research.

However- you must add your own thoughts, link to the original source, and give attribution. Attribution without original thoughts added is infringement.

How do you test for fair use?

The purpose and character of the use

The nature of the copyrighted work used

The amount and substantiality of the portion from the original work used compared to the whole copyrighted work, and

the effect of the use upon the potential market for or the value of the copyrighted work.

Your intent does not matter, even if it's good!

What do you do when you're on the receiving end of a takedown notice? Well, take a look at the content in question. If you believe you have violated copyright, you have the right the send a DMCA counter-notice to the same agent who sent the takedown notice. The host then has ten days to restore your material.

Defamation

Defamation: a false statement of fact that injures a third party’s reputation. Slander=spoken; libel=written

There are four elements to any libel case:

A false statement purporting to be fact (not an opinion)

Publication of said statement to a third party (blogs qualify)

Fault, and

Damages

Remember, libel concerns false statements that are presented as facts. It's not enough to simply add "in my opinion," it must be clear that it is your opinion. A negative review of a restaurant is not libelous ("the service was too slow"), but a false statement in your review is ("the service was slow because the waiters are all drunk!"). Doubting ingredients or a company's transparency can lead to libel suits. Simply put, don't make any unfounded claims.

What determines fact versus opinion?

Specific language used

Can the statement be verified?

The specific context of the statement (i.e., the post)

The broader context of the statement (i.e., the blog)

Keep in mind that if you repeat someone else's defamatory statement, you can be held just as liable as they are for the defamation!

Defamation of a public character

must prove the statement was made with actual malice

must prove the statement was made with "reckless disregard for the truth" (ie, it could easily be disproven with a Google search)

Defamation of a private citizen involved in a private concern:only must prove that the statement is false

Defamation of a private person involved in a public concern:must prove statement was made with actual malice

Defenses against accusations of defamation:

It was true!

The statement was substantially true (i.e., a minor detail was off that does not affect the main thrust of the statement)

No one would believe it was a fact

No malice was intended (public figures only)

There was no reputational damage (this is near impossible to prove though)

Giveaways

The Federal Trade Commission rules regarding getting products to review, as of 1999:

You must disclose your relationship with the company

You must say when you have been compensated and/or given free products

You must be true and honest in your reviews and endorsements

These apply to comments you make on other blogs, too! The FTC has the power to fine you up to $11,000 per violation, so keep these rules in mind!

SweepstakesRandom prizes given by chance

LotteryRandom prizes given by chance in exchange for a consideration (fee)

ContestPrizes given by merit

Giveaways are governed by both federal and state laws, but not matter what, lotteries are illegal, so don't do 'em! A consideration can be more than just a fee- anything with value can be a consideration: having to 'like' or 'follow', time spent on the contest, providing personal information, or using a specific app (and yes, Facebook counts). A good rule of thumb is to simply not ask people to do too much for a giveaway (a blog comment is a good one).

Giveaway guidelines: provide as much information as possible. Start and end times, possible odds, what happens to unclaimed prizes, why you are having a giveaway, etc. Don't require entrants to complete more than one action, and make sure it's something everyone can do (ie, leave a comment on your blog without 'registering' as a user, or using Facebook). No minors or Canadians allowed- sorry! The international law surrounding these issues are just too complicated. Finally, you must register prizes with a value greater than $600 with the IRS (Vitamix, anyone?).

Ag-gag

A number of states have begun to pass so-called "ag gag" laws, making it illegal to film farm activity without the expressed permission of the farm owner. Penalties can include fines, imprisonment, or even classification as a terrorist. Clearly these laws have been pushed by agricultural lobbyists in order to address undercover work done by animal rights activists.

As frustrating as these laws are, they fly pretty blatantly in the face of the First Amendment. Several lawsuits have already been filed to challenge and hopefully obliterate these laws. However, litigation takes many years, so the ag gag issue will be a topic for some time to come.

It was great to see you, too! This was a very interesting topic to me not only because I work for lawyers in my boring everyday life, but because my other blog (www.nortonsmoviemaps.com) pretty much relies exclusively on copyrighted material to exist.